People v. Stahl

• Decision Date: 21 July 2016
• Citation: 141 A.D.3d 962,35 N.Y.S.3d 779,2016 N.Y. Slip Op. 05597
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel D. STAHL, Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 962
35 N.Y.S.3d 779
2016 N.Y. Slip Op. 05597

The PEOPLE of the State of New York, Respondent,
v.
Daniel D. STAHL, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 21, 2016.

35 N.Y.S.3d 780

D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.

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G. Scott Walling, Special Prosecutor, Schenectady, for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and AARONS, JJ.

McCARTHY, J.P.

141 A.D.3d 962

Appeals (1) from a judgment of the County Court of Essex County (Meyer, J.), rendered May 17, 2012, convicting defendant following a nonjury trial of the crimes of rape in the first degree and sexual abuse in the first degree, and (2) by permission, from an order of said court, entered December 8, 2014, which denied defendant's motion pursuant

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to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In June 2011, defendant was charged in a seven-count indictment with, among other things, rape in the first degree and sexual abuse in the first degree. The charges stem from the allegation that, among other things, defendant drugged the victim with Xanax, without her knowledge, before proceeding to engage in sexual acts with her while she was physically helpless. After a nonjury trial, County Court found defendant guilty of rape in the first degree and sexual abuse in the first degree, acquitted him of the remaining charges and thereafter sentenced him to an aggregate prison term of 12 years to be followed by 10 years of postrelease supervision and ordered him to pay restitution and a fine. Defendant subsequently moved pursuant to CPLR article 440 to vacate the judgment of conviction, claiming, among other things, that he was denied the effective assistance of counsel due to a failure to seek the Trial Judge's recusal and a failure to explain to defendant the details of a personal relationship that one of defendant's counsel had with that Judge. County Court denied the motion without a hearing. Defendant appeals from the judgment and, by permission, from the subsequent order.

County Court properly denied defendant's motion to dismiss the indictment. On June 20, 2011, the People served defendant with notice that they were presenting their case to the grand jury on June 29, 2011 and specifically advised defendant to notify them in writing if he intended to testify before the grand jury. Defendant did not notify the People in writing of his intention to testify at the June 2011 presentment and, therefore, defendant's rights were not violated when the indictment was obtained without his testimony (see People v. Medeiros, 116 A.D.3d 1096, 1097, 983 N.Y.S.2d 329 [2014], lv. denied 24 N.Y.3d 1045, 998 N.Y.S.2d 315, 23 N.E.3d 158 [2014] ; People v. Tole, 94 A.D.3d 1334, 1334–1335, 942 N.Y.S.2d 295 [2012], lv. denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; People v. Caban, 89 A.D.3d 1321, 1322, 932 N.Y.S.2d 923 [2011] ).

Defendant's arguments that the verdict was based on legally insufficient evidence and that it was against the weight of the evidence because the victim was not physically helpless and defendant did not have sexual intercourse with her are both without merit. Considering the evidence, including the victim's testimony regarding her alcohol consumption and limited ability to remember the night in question, the expert testimony regarding Benzodiazepine¹ found in the victim's urine and the expert testimony linking defendant through DNA analysis to

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sperm found on the tampon that the victim was wearing and to sperm found on an anal swab from the victim, we conclude that the evidence was legally sufficient (see

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People v. Kessler, 122 A.D.3d 1402, 1403, 996 N.Y.S.2d 836 [2014], lv. denied 25 N.Y.3d 990, 10 N.Y.S.3d 533, 32 N.E.3d 970 [2015] ) and supported by the weight of the credible evidence (see People v. Yontz, 116 A.D.3d 1242, 1243, 983 N.Y.S.2d 694 [2014], lv. denied, 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ; People v. Bjork, 105 A.D.3d 1258, 1260–1261, 963 N.Y.S.2d 472 [2013], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013], cert denied ––– U.S. ––––, 134 S.Ct. 1306, 188 L.Ed.2d 328 [2014] ).

Next, as the People concede, law enforcement lacked the necessary grounds to seize defendant when an officer stopped him while he was driving in order to inform him that law enforcement wished to speak to him. Nonetheless, that violation did not require the suppression of a subsequent statement that defendant made to law enforcement. The attenuation doctrine, which addresses whether evidence obtained subsequent to such an illegal seizure must be suppressed, “requires a court to consider the temporal proximity of the [seizure] and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct” (People v. Bradford, 15 N.Y.3d 329, 333, 910 N.Y.S.2d 771, 937 N.E.2d 528 [2010] [internal quotation marks and citation omitted] ). Here, after the brief roadside seizure ended, defendant voluntarily drove himself to a police station and agreed to speak to a law enforcement officer there. Before defendant gave a statement, he received Miranda warnings. In light of these facts, defendant's statement was attenuated from the illegal police conduct and, thus, was not subject to suppression (see People v. Bradford, 15 N.Y.3d at 333–335, 910 N.Y.S.2d 771, 937 N.E.2d 528 ; People v. Buchanan, 136 A.D.3d 1293, 1294, 23 N.Y.S.3d 788 [2016] ).

In addition, County Court did not err in allowing the People to elicit bad act evidence in the form of testimony from other people regarding defendant's offer of Xanax to them. The testimony was directly relevant to the issue of whether defendant possessed a controlled substance, which was an element of each of the charges against defendant of facilitating a sex offense with a controlled substance (see Penal Law § 130.90 ; see generally People v. Fuller, 50 A.D.3d 1171, 1176, 854 N.Y.S.2d 594 [2008], lv. denied 11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100 [2008] ). Further, we find no abuse of discretion in County Court's determination that the probative value of the aforementioned evidence outweighed any improper prejudicial effect (see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ).

Next, defendant's constitutional right to confront witnesses was not violated (see U.S. Const 6th Amend). Defendant contends that County Court erred in admitting into evidence the reports prepared by Laurie Pasqualino, the forensic

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scientist who analyzed the DNA data and linked defendant's DNA to the samples from the rape kit, over defendant's objection that she relied upon data compiled by lab technicians in the same lab who did not testify at trial. We disagree. Pasqualino testified that she analyzed raw data compiled by the nontestifying lab technicians and that she did not rely on the opinions or interpretation of anyone else in forming her scientific conclusions linking defendant's DNA profile to the victim's rape kit, which conclusions were contained in the reports that she authored (see People v. Brown, 13 N.Y.3d 332, 336–337, 339–340, 890 N.Y.S.2d 415, 918 N.E.2d 927 [2009] ; see also People v. John, 27 N.Y.3d 294, 301–302, 33 N.Y.S.3d 88, 52 N.E.3d 1114 [2016] ). Pasqualino testified and was subject

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to cross-examination, satisfying the requirement that “analysts who write reports that the prosecution introduces [into evidence at trial] must be made available for confrontation” (Bullcoming v. New Mexico, 564 U.S. 647, 661, 131 S.Ct. 2705, 180 L.Ed.2d 610 [2011] ; accord People v. Raucci, 109 A.D.3d 109, 121–122, 968 N.Y.S.2d 211 [2013], lv. denied 22 N.Y.3d 1158, 984 N.Y.S.2d 642, 7 N.E.3d 1130 [2014] ; compare People v. John, 27 N.Y.3d at 301, 33 N.Y.S.3d 88, 52 N.E.3d 1114 ).

While the right of the accused to confront witnesses precludes “surrogate testimony,” i.e., the admission of one person's testimonial statements...